declarations, which have been read; the direct evidence of the witnesses
adduced for the prosecutor to the commission of the crime; and the real
evidence of circumstances.
With regard to the declarations, the Lord Advocate has told
[Illustration: John Clerk (afterwards Lord Eldin).
(_After Kay._)]
you, gentlemen, that they contain a variety of particulars which have
not been read, and have been omitted by the consent of the pannel; and
from this, his Lordship observed, an inference might be drawn that the
declarations contain many more particulars little to the credit of the
pannel. Gentlemen, an inference more candid, or at least more
charitable, might, in my opinion, be deduced from the circumstance. It
is easy to conceive the state of mind in which the pannel must have been
when apprehended. Connected with those infamous men who were supposed to
have committed the crime, a partner in their most dissolute scenes, no
wonder, gentlemen, that he was struck with terror when seized upon an
accusation of being joined in their guilt.
After having resisted for some time the impressions arising from his
confinement, his panic most naturally increased almost to a delirium; a
fit of temporary frenzy, an insanity, seized him, and he accused himself
of an atrocious crime as the only means of safety. But this accusation
is rejected by his cooler judgment, and accordingly he pleaded not
guilty at this bar. In accusing himself in such a manner, the greater
variety of crimes he laid to his own charge, the greater is the
improbability of their being true, for it was folly to balance the merit
of confessing a crime eagerly inquired after by the guilt of other
crimes which were out of head. And it was folly of such a sort as to
prove that the pannel was incapable of rational conduct; and thus the
credit of his declaration, in so far as it injured himself, is in
charitable reasoning considerably diminished.
But, at all events, gentlemen, it is sufficiently known and
acknowledged, and it was even admitted--at least, it was not denied by
the Lord Advocate himself--that the extrajudicial declaration of a
pannel is not legal evidence against him. It is undoubtedly a
circumstance in evidence, but not of weight to convict unless it be
adminicled by other proof. This will be admitted, on all hands, to be
the law of Scotland, and I shall make no comment on it.
If, therefore, it is shown to your satisfaction that the parole and
circumstantiate evidence is either contradictory, inconsistent, or
incredible, you will lay very little stress on the extrajudicial
confessions of the prisoner.
And this leads me to the second branch of the evidence, or the attempt
at a direct proof of the accession of the pannel, Smith, to the crime
charged.
The first witness after those to the declarations, whose deposition
affects the pannel Smith, is M‘Lean, Mr. Drysdale’s waiter. He is the
nineteenth witness. I need not enter into the particulars of his
evidence, since all of you must recollect that he could say nothing more
than that Smith bought a ticket in the mail-coach for his wife; gave
him in payment a five-pound bank-note, battered on the back, and
received the change. It does not appear from whence the pannel had the
note which he gave to M‘Lean, nor whether it was among the money which
was stolen from the Excise Office or not.
John Clerk, Mr. Drysdale’s cashier, the twentieth witness, could not
even say so much as M‘Lean. It does not appear from either of these
depositions whether the paper on the table was that which was presented
to them or not, as the Court determined that it is not properly
described in the indictment, and on that account it cannot be used in
evidence against the pannel.
I may therefore leave these witnesses, gentlemen; and I am persuaded
that none of you will think that they said anything which militates
against my client in the smallest degree.
Grahame Campbell, the seventeenth witness, was examined as to a variety
of particulars, but her whole deposition, in so far as it regards the
pannel Smith, amounts to no more than that he was in company with
Brodie, Ainslie, and Brown that evening on which the Excise Office was
broken into; that they supped together, ate herrings or a fowl, whilst
she was in a back cellar; and upon her coming out of this back cellar
the company had left the house, and Smith, her master, had likewise gone
out; but there is no evidence of their having gone out together, and
although they had, it does not follow that they went to the Excise
Office together.
It would be very hard if a man should be suspected of a robbery merely
because he leaves his house about the time that the robbery is
committed, and in this case--there is little more; for it was by no
means extraordinary that Brown and Ainslie should be with Mr. Brodie in
Mr. Smith’s house that night, as they were there every night, always
playing at cards and dice, and amusing themselves in company together.
And further, gentlemen, although they had not been drawn together by
constant habits and the love of similar amusements, a good reason was
given why Brown and Ainslie were constantly at the house of Smith. You
were informed that these two men dined and supped there every day, that
is, were day boarders in his house.
Putting all this together, I may dismiss this witness with the same
observation which I applied to the former ones. As far as I understand
her evidence, she said nothing which has a tendency to criminate my
client.
I come next to the testimony of Ainslie and Brown. Gentlemen, you have
heard a variety of objections stated to the admissibility of their
evidence--all of which has been over-ruled by the Court. But
notwithstanding the judgment of their Lordships, I must adhere to these
objections and maintain that they ought not to have been admitted as
witnesses. Gentlemen, I think a great deal of most improper evidence has
been received in this case for the Crown.
The LORD JUSTICE-CLERK--Do you say that, sir, after the judgment which
the Court has pronounced? That, sir, is a most improper observation to
address at the outset to the jury.
Lord STONEFIELD--It is a positive reflection on the Court.
Lord HAILES--It is a flat accusation that we have admitted improper
evidence.
Lord ESKGROVE--I never heard the like of this from any young counsel at
the beginning of his career at this bar.
The LORD JUSTICE-CLERK--With these admonitions, go on, sir; proceed,
sir.
Mr. CLERK--Aweel, my Lords, if I go on, I beg to assail at the outset
the evidence of these two corbies or infernal scoundrels, Ainslie and
Brown.
The LORD JUSTICE-CLERK--Take care, sir, what you say.
Mr. CLERK--Yes, my Lords, I say that they are both most infamous
characters. Gentlemen, you should discard such vagabonds, and not rely
on their evidence in any way; and if you knock out the vile brains of
their evidence in this case, there is nothing else remaining on which
you can convict my poor client, except his own very candid declarations
which I have already explained to you. Gentlemen, these nefarious
witnesses Ainslie and Brown, should have stood at this bar this night in
place of my client, who was happy in his domestic privacy with his poor,
honest, inoffending wife, whom you this day saw--and my heart bleeds for
her. [Here there was some applause from the audience which was at once
suppressed.] Gentlemen, Ainslie contradicts himself, and Brown is not to
be believed. With respect to this said Mr. John Brown _alias_ Humphry
Moore, you had it out of his own mouth that he was a convicted felon in
England, and I say to you that no convicted felon ought, by the good and
glorious law of Scotland, to be received as a witness in this or any
other case in the British dominions.
[Great applause from the audience.]
MACERS--Silence in Court.
The LORD JUSTICE-CLERK--Mr. Clerk, please restrict your reflections. The
Court have admitted the witness.
Mr. CLERK--Yes, my Lords, I know that very well, but your Lordships
should _not_ have admitted him, and of that the jury will now judge.
The LORD JUSTICE-CLERK--This is most indecent behaviour. You cannot be
allowed to speak to the admissibility; to the credibility you may.
Lord STONEFIELD--This young man is again attacking the Court.
Mr. CLERK--No, my Lords, I am not attacking the Court; I am attacking
that villain of a witness, who, I tell your Lordships, is not worth his
value in hemp.
The LORD JUSTICE-CLERK--The Court, sir, have already solemnly decided,
as you know, on the objections raised by the Dean of Faculty, that in
law the objections to these witnesses should be repelled, and they were
repelled accordingly; therefore you should have nothing more to say to
us on that point.
The DEAN OF FACULTY--If it will satisfy Mr. Clerk, I can assure him that
I will plead on this point to the jury, waiving all objections to the
admissibility, which it may be rather irregular to plead after the
decision of the Court.
The LORD JUSTICE-CLERK--Dean of Faculty, I know you will attempt nothing
that is improper.
Mr. CLERK--But, my Lords, the jury are to judge of the law as well as
the facts.[23]
The LORD JUSTICE-CLERK--Sir, I tell you that the jury have nothing to do
with, the law, but to take it _simpliciter_ from me.
Mr. CLERK--That I deny.
[Consternation in Court.]
Lord HAILES--Sir, will you deny the authority of this High Court?
Mr. CLERK--Gentlemen of the jury, notwithstanding of this interruption,
I beg to tell you, with all confidence and all respect, that you are the
judges of the law as well as the facts. You are the judges of the whole
case.
The LORD JUSTICE-CLERK--You are talking nonsense, sir.
Mr. CLERK--My Lord, you had better not snub me in this way. I never mean
to speak nonsense.
The LORD JUSTICE-CLERK--Proceed--gang on, sir.
Mr. CLERK--Gentlemen, I was telling you that this infernal witness was
convicted of felony in England, and how dare he come here to be received
as a witness in this case?
The LORD ADVOCATE--He has, as I have shown you, received His Majesty’s
free pardon.
Mr. CLERK--Yes, I see; but, gentlemen of the jury, I ask you, on your
oaths, can His Majesty make a tainted scoundrel an honest man?
[Great applause in Court.]
The LORD JUSTICE-CLERK--Macers, clear the Court if there is any more
unruly din.
The LORD ADVOCATE [interposing and addressing Mr. Clerk]--Sir, permit me
to say, after this interruption, that the prerogative of mercy is the
brightest jewel in His Majesty’s Crown.
Mr. CLERK--I hope His Majesty’s Crown will never be contaminated by any
villains around it.
[Sensation in Court.]
The LORD JUSTICE-CLERK [to the Lord Advocate]--Do you want his words
noted down?
The LORD ADVOCATE--Oh no, my Lord, not exactly yet. My young friend will
soon cool in his effervescence for his client.
The LORD JUSTICE-CLERK [to Mr. Clerk]--Go on, young man.
Mr. CLERK--Gentlemen of the jury, I was just saying to you, when this
outbreak on the bench occurred, that you were the judges of the law and
of the facts in this case.
The LORD JUSTICE-CLERK--We cannot tolerate this, sir. It is an indignity
to this High Court--a very gross indignity, deserving of the severest
reprobation.
Mr. CLERK--My Lords, I know that your Lordships have determined this
question; but the jury have not. They are judges both of fact and of the
law, and are not bound by your Lordships’ determination, unless it
agrees with their own opinion. Unless I am allowed to speak to the jury
in this manner, I am determined not to speak a word more. I am willing
to sit down if your Lordships command me. [Here Mr. Clerk sat down.]
The LORD JUSTICE-CLERK--Go on, sir; go on to the length of your tether.
[Mr. Clerk then rose and resumed his address.]
Mr. CLERK--Yes, gentlemen, I stand up here as an independent Scottish
advocate, and I tell you, a jury of my countrymen, that you are the
judges of the law as well as of the facts.
The LORD JUSTICE-CLERK--Beware of what you are about, sir.
[Here Mr. Clerk again sat down.]
The LORD JUSTICE-CLERK--Are you done, sir, with your speech?
Mr. CLERK--No, my Lord, I am not.
The LORD JUSTICE-CLERK--Then go on, sir, at your peril.
Lord HAILES--You had better go on, Mr. Clerk. Do go on.
Mr. CLERK--This has been too often repeated. I have met with no
politeness from the Court. You have interrupted me, you have snubbed me
rather too often, my Lord, in the line of my defence. I maintain that
the jury are judges of the law as well as of the facts; and I am
positively resolved that I will proceed no further unless I am allowed
to speak in my own way.
The LORD JUSTICE-CLERK--Then we must now call upon the Dean of Faculty
to proceed with his address for the prisoner Brodie, which the Court
will hear with the greatest attention. [Here the learned Dean shook his
head, as if declining to do so.] Very well. The Court will proceed now
and discharge its duty.
[His Lordship was then about to address the jury in his final charge.]
Mr. CLERK [starting to his feet and shaking his fist at the bench]--Hang
my client if you daur, my Lord, without hearing me in his defence!
[These remarkable words produced the greatest sensation in Court; the
judges retired to the robing-room to hold a consultation; but on their
returning to Court, the Lord Justice-Clerk merely requested Mr. Clerk to
proceed with his speech. Mr. Clerk then continued his address without
further interruption.]
Mr. CLERK--I say, gentlemen, I adhere to all the objections stated on
the proof, both to the admissibility and to the credibility of these
witnesses.
On the other hand, it is obvious, that if they are to be listened to as
good and unexceptionable witnesses, their evidence goes to prove the
guilt of my client in the clearest and most unequivocal manner; so that
the questions come to be, how far are they admissible at all? and how
far are they credible? Is their evidence to be laid aside altogether?
and if not, to what extent is it worthy of belief?
Gentlemen, before I was interrupted, I was going to observe, that in
this branch of the evidence my cause is the same with that which is to
be supported with so much greater abilities by the Dean of Faculty; and
of consequence it would be unnecessary and even impertinent in me to
take up your time in arguing at large upon the subject. I have followed
the same conduct in the other particulars of the proof, where the
pannels are in similar circumstances; and I have only to desire you to
apply the same principles to both cases.
Gentlemen, I come now to the real evidence. Some of the witnesses
deponed that Mr. Smith was taken up to Brodie’s buildings, and there
some of the articles on the table were found, but nothing in this part
of the evidence is inconsistent with the innocence of Smith, who might
be better acquainted with Mr. Brodie’s shop and yard than the officers,
without being a partner in the crimes of which he (Brodie) might be
guilty.
The most material circumstance in the proof relates to the finding of
the iron crow, the curling irons, and key, in the hole of a wall, and
for that reason I reserve it for the last.
There are two capital defects in the evidence of this fact. First, a
glaring contradiction concerning the place where the things were found;
and, secondly, as glaring a contradiction in the account of what passed
at finding them. Middleton says that they were found in Warriston’s
Close; Murray, on the contrary, that they were found in Allan’s Close.
Middleton told you expressly that the pannel put his hand into the hole
in the wall and drew them out; but Murray said that this was impossible,
because he had his hands tied behind him: and this witness farther added
that he himself drew them out.
[Illustration: The Dean of Faculty (Hon. Henry Erskine).
(_After Kay._)]
These are no common mistakes; and I ask, what reliance can be had on
evidence where two such falsehoods appear within the narrow compass of a
few questions? I am willing to grant that there are slight inaccuracies
which rather tend to confirm the truth of a deposition than to render it
suspected; but you cannot suppose errors like these concerning such
marked and important circumstances, as make an impression on the memory
equally indelible with any part of the story, and which in this instance
constitute its leading features.
I say there must be a radical error here, either in the candour of the
witnesses, or in the events which they have related. They are either
perjured, or have been deceived, about the articles on your table; and
in either case their testimony is good for nothing. It is plain that the
iron crow was not found both in Warriston’s Close and in Allan’s Close;
the prisoner was not both fettered and unfettered at the same time; and
it matters not to me which of the witnesses has been deceived. Whoever
it is, it cannot be determined on this trial that any of them spoke the
truth; and of consequence the evidence of both must be laid out of
consideration.
At all events, gentlemen, what have you more than two solitary witnesses
to two contradictory facts, instead of two witnesses to one consistent
event? This can never be reckoned good and legal evidence on a trial for
life, where equity as well as expediency require the most scrupulous
accuracy.
Gentlemen, I have now stated what appear to me to be the most material
circumstances in the proof. I have commented on the depositions of the
witnesses in so far as they may be thought to criminate my client; and
without farther detaining you, I beg leave to conclude by repeating the
proposition which I have endeavoured to maintain, that there has not
been adduced on this trial sufficient legal evidence to warrant a
verdict against Mr. Smith.
* * * * *
At three o’clock in the morning the Dean of Faculty rose to address the
jury on behalf of William Brodie.
The Dean of Faculty’s Address to the Jury.
[Sidenote: Dean of Faculty]
The DEAN OF FACULTY--Gentlemen of the jury, the present trial exhibits
in the person of William Brodie, in whose behalf I now address you, a
singular phenomenon in the moral world: a man descended of an ancient
and honourable family, left by a respectable father in opulent
circumstances, and very far from indigence and temptation; educated in
the manners and habits of a gentleman; bred to a reputable occupation,
at the head of which he has frequently stood; and in virtue of that
situation been a member of the Town Council of this great city; who, for
a long series of years, has maintained an irreproachable character in
society, and has often filled offices of honour and trust among his
fellow-citizens, the duties of which he has discharged with attention
and fidelity, standing at the bar of this High Court, accused of having
leagued himself with the meanest and most abandoned of mankind, in the
commission of a crime not less marked with moral depravity on the part
of the perpetrators, than fraught with injury and danger to the public.
God forbid, gentlemen, that I were capable of wishing to press on your
minds these circumstances in my client’s once honourable and happy
situation, with a view of creating in your minds an undue bias in his
favour. Though your discernment were not, as I know it is, sufficient to
secure you against the effect of such considerations, my feelings as a
man, and a sense of my professional duty, would not allow me to resort
to such arguments in opposition to justice, which is no respecter of
persons.
Yet, gentlemen, there is a view in which I am entitled to call your
attention to the former situation and circumstances of this unfortunate
gentleman; for unfortunate I must call him, be the result of the present
trial life or death. In deciding on evidence in support of a criminal
charge, the former character of the prisoner, his probable temptations
to commit the offence with which he is charged, must ever be a material
consideration. A poor, forlorn wretch, without fortune, without friends,
without education, without occupation, is he who is naturalised to
support himself by private or open depredation on the public; and when
such a person is accused, the minds of a jury, though they must presume
his innocence, do not revolt at the charge as improbable. The situation
of such men is charmingly described by an eloquent poet of this
country--
The needy man who has known better days;
One whom distress has spited at the world;
Is he whom tempting fiends would pitch upon
To do such deeds, as make the prosperous men
Lift up their hands and wonder who could do them.[24]
My client was no such man. No circumstance in his situation has afforded
a temptation to be guilty of such wrongs to risk his name, his life, for
the acquisition of what his fortune, his profession, were fully
adequate, honestly and fairly, to procure him.
In these circumstances you are called upon to examine the evidence in
this case with the nicest accuracy. You are bound by more than common
ties to require the fullest and most explicit proofs of such enormous
guilt, so improbable, so unprecedented, before you find a verdict
against a man who was once upon the same respectable footing with
yourselves, and supposed to be governed by the same honourable
principles.
But, gentlemen, while I mentioned the situation which Mr. Brodie once
held in life, his family, his fortune, his friends, I must admit,
however degrading to him the acknowledgment may be, that this unhappy
man, instead of pursuing with industry the useful and reputable
occupation by which his own fortune was acquired, and by which it might
have been preserved, and with it his own peace, honour, and happiness,
has for years past so far yielded himself to idleness and dissipation,
and to what in the present age is too often the sad concomitant of such
habits, an unhappy itch for gambling, as to lead him into the company of
persons with whom, for any other purpose, he would have disdained to
associate.
The unfortunate prisoner, Mr. Brodie, is by no means singular in his
attachment to this vice; nor is it at all confined to the lower stations
of life. People of the highest rank scruple not, in the course of their
gambling, to mix with highwaymen and pickpockets, and to descend to
practices of chicane and cunning which, in any other situation, they
would themselves abhor. It was but the other day that a gentleman of
Brighthelmstone, reputed worth three thousand pounds per annum, was
detected in the very act of using loaded dice, and was obliged to fly
the country for it; which is exactly Mr. Brodie’s situation.[25]
But the gaming table levels all distinctions. There the high and the
low, the rich and the poor, meet together. There, I admit--indeed, I
have thought it necessary to prove the fact, in order to account for so
strange a connection, from the bare existence of which strong arguments
of his guilt have this night been drawn--there, I say, I admit that this
unhappy, this misguided man, learned to endure, and at last to court,
the society of those abandoned, those profligate wretches, who have this
day come forward, in the most suspicious circumstances, to swear him
their accomplice in the felony charged in the indictment.
But though the prisoner at the bar acknowledges with contrition these
habits of folly and dissipation, and the disgraceful connection in
which, to that extent, it unhappily involved him, yet he trusts it will
appear, from a full consideration of the evidence, that
The very head and front of his offending
Has this extent; no more.
And he trusts to the candour and justice of you, gentlemen of the jury,
that you will not allow this unfortunate connection to go further in
your mind, as an ingredient of proof, than it justly ought; and far less
to let suspicions supply the want of that legal evidence which the law
of this free and happy country requires, in order to affect the life of
any of its citizens, however dangerous to society the crimes charged may
be, and however interested the public may be that they should be
convicted.
Gentlemen, with these general observations in view, I intreat you to
attend to the proof on which a verdict is asked from you against the
life of this unfortunate man.